Decision

Validity Decision

Updated 21 November 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1285(2022)

11 November 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

DETERMINATION OF THE BARGAINING UNIT

The Parties

RMT

and

Isles of Scilly Shipping (Guernsey) Ltd

1. Introduction

1) RMT (the Union) submitted an application to the CAC dated 11 August 2022 that it should be recognised for collective bargaining purposes by Isles of Scilly Steamship Company Ltd (the Employer) for a bargaining unit comprising “Motorman, Bosun, Pursers and Able Seaman employed on board the vessel the Scillonian 111”. The location of the bargaining unit was given as on board the vessel the Scillonian 111. The application was received by the CAC on 11 August 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 17 August 2022 which was copied to the Union.^{[footnote 1]}

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case. The Panel consisted of Mrs Sarah Havlin, Panel Chair, and, as Members, Mrs Susan Jordan and Ms Joanna Brown. The Case Manager appointed to support the Panel was Joanne Curtis.

3) By a decision dated 8 September 2022 the Panel accepted the Union’s application. The parties then entered a period of negotiation to reach agreement on the appropriate bargaining unit. As the parties were unable to agree a bargaining unit the CAC arranged a formal hearing to determine the issue on 20 October 2022. At the formal hearing the Panel determined the appropriate bargaining unit to be: ‘The workers on the Scillonian III vessel with the job titles of Bosun, Able Seaman Motorman and Purser, excluding those who are seasonal workers.’ This differed from the original bargaining unit proposed by the Union which was ‘Motorman, Bosun, Pursers and Able Seaman employed on board the vessel the Scillonian 111’.

4) The new bargaining unit included seven (7) workers. The membership and support check conducted on 31 August 2022 had shown a total of 12 workers in the original proposed bargaining unit, therefore the new bargaining unit involved a decrease in numbers.

2. Issues

5) As the bargaining unit determined by the Panel differed from that proposed by the Union, paragraph 20 of Schedule A1 to the Act (the Schedule) requires the Panel to decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 of the Schedule. The matters that the Panel must consider are: -

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

• is there 10% union membership within the new bargaining unit? (paragraph 45(a))

• are the majority of the workers in the new bargaining unit likely to favour recognition? (paragraph 45(b))

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

6) In a letter dated 24 October 2022 the Panel invited the parties to make submissions on these matters for consideration by the Panel.

3. Views of the Union

7) In an email dated 31 October 2022 the Union advised that:

• there was no existing recognition agreement covering any of the workers within the determined bargaining unit;

• they had over 50% membership within the Union of those currently employed in a permanent capacity in the grades identified as forming the appropriate bargaining unit. The Union added that all of its members were supportive of collective bargaining. It refuted any suggestions that unfair pressure had been applied as suggested by the Employer and stated that it could provide email confirmation, on a confidential basis, from members that there had been no such coercion.

• given the membership levels the majority of workers would support recognition;

• there was no competing application from another union that covered any worker in the determined bargaining unit;

• there was no previous application in respect of the determined bargaining unit.

4. Views of the Employer

8) In an email dated 31 October 2022 the Employer advised that:

• (agreeing with the Union) there was no existing recognition agreement covering any of the workers within the determined bargaining unit,

• It could not confirm if the Union had membership above the 10% level.

• It did not know whether the majority of the workers in the new bargaining unit would be likely to favour recognition but raised the following concerns:

i. “That it had received a number of confidential representations from workers within the determined bargaining unit stating that they did not wish to be part of any bargaining unit. That workers had felt pressurised to join the RMT Union and that this had caused a strained atmosphere onboard creating a difficult working relationship amongst crew who needed to work closely together.

ii. That it was concerned that one known union member had advised that the Employer should not be consulting workers on ongoing issues which affected the crew and officers of two of the Company’s vessels. That this was particularly unhelpful and not welcomed by many workers who wanted that long standing matter to be resolved.

iii. Crew from the freight ship who had carried out work onboard Scillonian III had reported that they felt ostracised by certain individuals and that this has led to an uncomfortable and unwelcome working situation for those crew members.

iv. That it was concerned that the determined bargaining unit would be seen by a few individual workers as a means of stopping current management consultation with officers and the registered office namely Isles of Scilly Steamship Company Ltd, Hugh Town, St. Marys, Isles of Scilly. It added that this would lead to a division amongst crews, officers and ships who shared a common interest in that aspect of their terms and conditions.

v. That it was aware of the very public drive by the union to try to achieve a 100% membership of “ferry workers” and that some of the workers had been approached by union officials to achieve this.

vi. As an employer, it believed that it had a duty of care to highlight the concerns of those workers who did not wish to be part of any bargaining unit and who did not believe that their views would be taken into account.

• (agreeing with the Union) there was no competing application from another union that covered any workers in the determined bargaining unit;

• (agreeing with the Union) there was no previous application in respect of the determined bargaining unit.”

5. Case Manager’s membership check

9) To assist in the determination of two of the validity tests specified in the Schedule, namely, whether 10% of the workers in the determined bargaining unit were members of the union (paragraph 45(a)) and whether a majority of the workers in the determined bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership within the determined bargaining unit. The Employer agreed to supply to the Case Manager a list of the names and job titles of the workers within the bargaining unit and the Union agreed to supply to the Case Manager a list of the full names, dates of birth and job titles of its members within that unit. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 31 October 2022. The information from the Employer and the Union was received by the CAC on 1 November 2022.

10) The list supplied by the Employer indicated that there were seven (7) workers in the determined bargaining unit. The list of members supplied by the Union contained 11 names. According to the Case Manager’s report, the number of Union members in the determined bargaining unit was five (5), a membership level of 71.42%. The report of the check was issued to the parties and the Panel on 2 November 2022. The Panel was satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

11) A report of the result of the membership and support check was circulated to the Panel and the parties on 2 November 2022 and the parties were invited to comment on the results of that check by Noon on 7 November 2022.

6. Summary of the parties’ comments following the membership and support check

12) In a letter dated 4 November the Employer stated that it agreed that there were five Union members within the determined bargaining unit however there were still two workers not in the Union who did not wish to be a member of any bargaining unit since they were content with the relationship that existed between crew, officers and the Company. It added that these two workers represented 29% of the bargaining unit, which was not an inconsiderable percentage given how small the bargaining unit was. It reiterated the concerns raised in the last letter to the CAC dated 31 October 2022.^{[footnote 2]}The Employer went on to say that it was of concern that a small and fragmented group of workers may be able to exert influence over a number of ongoing consultations which affected all crew and officers of both of its vessels. Consultations which had so far received a positive response. It stated that it was surprised that the Union had applied for recognition after the original “Voluntary Bargaining Unit” was terminated by the Employer without contest from the Union. Finally, the Employer wished to add that it fully encouraged all workers to belong to a trade union of their choice and that it had been advised by a number of workers that whist they did wish to be a member of a trade union they did not wish to be part of any bargaining unit. The Employer reiterated once more that it did not believe that the determined bargaining unit would be conducive to the existing employee/employer relationship held with the ship’s crew and that it amounted to only a small fragment of the business’s undertaking. The Employer concluded by stating that in light of all its representations it would request an independent and confidential ballot be held, free from the influence of the Employer and the Union.

13) In an e mail dated 7 November 2022 the Union stated that the recent membership check provided the data required to confirm that it had majority membership within the determined bargaining unit and refuted any claims of pressure being applied to workers to join the Union. The Union stated that it had e mails sent from members supporting collective bargaining and dismissing the views of the Employer regarding pressure being applied to individuals. The Union concluded by saying that it did not believe a ballot was necessary given the small numbers within the bargaining unit and added that it would prefer to have a decision in place that would allow them to build and develop a relationship with the Employer.

7. Considerations

14) The Panel must decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 of the Schedule. In reaching its decision the Panel has considered the parties’ submissions and the other evidence before it. On the evidence available, the Panel is satisfied that:

• there is no existing recognition agreement covering any of the workers within the determined bargaining unit;

• there is no competing application from another union; and

• there has been no previous application in respect of the agreed bargaining unit.

15) The remaining issues for the Panel to decide are whether the validity criteria contained in paragraphs 45(a) and (b) are met.

8. Paragraph 45

16) Paragraph 45 of the Schedule states an application is invalid unless the Panel decides that (a) members of the union constitute at least 10% of the workers in the determined bargaining unit and (b) a majority of the workers constituting the determined bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of that bargaining unit.

Paragraph 45(a)

17) Under paragraph 45(a) of the Schedule an application is invalid unless the Panel decides that members of the union constitute at least 10% of the workers in the determined bargaining unit. The CAC conducted a membership and support check. The results appear at paragraphs 9 through to 11 above. Based on those results, the Panel finds that this test is satisfied.

Paragraph 45(b)

18) Under paragraph 45(b) of the Schedule, an application is invalid unless the Panel decides that a majority of the workers constituting the determined bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

19) The membership and support check identified that 71.42% of the workers in the determined bargaining unit were members of the Union. This is a legitimate indicator of likely support for recognition of the Union for collective bargaining purposes. The Employer has not provided any evidence to demonstrate that the majority of the workers were no longer likely to favour recognition of the Union to conduct collective bargaining on their behalf. On the evidence before it, the Panel has decided that, on the balance of probabilities, a majority of the workers in the determined bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 45(b) of the Schedule.

9. Decision

20) The decision of the Panel is that the application is valid for the purposes of paragraph 20 of the Schedule and the CAC must proceed with the application.

Panel

Mrs Sarah Havlin, Panel Chair

Mrs Susan Jordan

Ms Joanna Brown

11 November 2022

---

1. In the covering letter sent in with its formal response the Employer stated that its correct identity was Isles of Scilly Shipping (Guernsey) Ltd and the Panel Chair directed that the CAC amend its records accordingly. Neither the Employer or the Union objected to this change. ↩

2. The Panel has not sought to reiterate the views outlined in the Employer’s letter dated 31 October in this paragraph as these have been covered in paragraph 8 of this decision. ↩